R v Ince [2001] VSCA 214

7. On 30 August 1999 the applicant was presented in the Supreme Court on a charge alleging that on 14 December 1997 he murdered Ian Peter Broadbent. He pleaded not guilty, and, after a trial in which some 38 witnesses were called, on 21 September 1999 the jury returned a verdict of guilty of murder. On 8 February 2001 the applicant was sentenced to be imprisoned for 15 years with a non-parole period of 10 years. He now seeks leave to appeal against conviction.

10. The Crown case was as follows. On the morning of Saturday 13 December 1997 Ian Broadbent, a plumber, returned from work at 11.30 a.m. and prepared to go to a birthday party in Montmorency. His partner, Touree Medley drove him to the party at 1 p.m., Broadbent taking with him two prepared joints of cannabis L. An arrangement had been made that he would telephone Medley when he was ready to go home. By 6.30 p.m., when Medley spoke to Broadbent by telephone, he sounded very happy and drunk. He asked Medley to come to the party and to bring with her three cans of "pre-mixed Jim Beam and coke". She arrived at the party at 7.30 p.m. and found Broadbent drunk, but very happy and convivial. At about 10.30 p.m. Medley decided it was time to take Broadbent home and they left the party with Medley driving. As Medley drove towards their home, Broadbent told her that she was driving the wrong way and as they went along Grimshaw Street, Bundoora, he suddenly pulled on the handbrake. When Medley told Broadbent not to do this, he became upset with her and as the car approached the intersection of Grimshaw Street and Plenty Road, tried to get out. He continued thereafter to try to get out of the car and, after turning from Plenty Road into Settlement Road, Medley stopped the car and let Broadbent out. Broadbent then walked back to Plenty Road, and lay

down on a garden bed at the corner of Plenty Road and Settlement Road. Medley a little while later attempted to make Broadbent get in the car again, but he refused and began walking along Settlement Road. When her continued attempts to get Broadbent to return to the car failed, Medley drove off to Broadbent's parents' home, and shortly afterwards returned to the home she shared with Broadbent.

14. At about 11.15 p.m., Broadbent entered the Norris Bank Community Hall in Settlement Road, where a Christmas function was under way. The organiser, Walter Crane, thought he was intoxicated or drug-affected, but Crane allowed him to go to the toilet. Shortly afterwards he was seen by Crane to wander over to the car park of the hall, where he was flailing his arms and apparently executed a karate kick after which he fell over. He then began banging on a car and punched the window of a car. A little while later a motorist driving along Settlement Road saw Broadbent, bare-chested, waving his T-shirt above his head, and yelling, punching and kicking out at passing cars. At the intersection of Plenty Road and Settlement Road, he approached a car and tried to open the front doors (which were locked) on both sides of the car. The driver drove off against a red traffic light. Thereafter Broadbent was seen by a number of motorists in Settlement Road and Plenty Road, still bare-chested, and kicking at the sides of cars. He was seen in the area of the corner of Settlement Road and Plenty Road by two off-duty police officers in separate cars, one of whom said in evidence that Broadbent punched at the passenger side window of a van as it drove past and two other cars, and appeared to be "very angry, upset, sort of violent in a way".

17. At approximately 11.20 p.m., Neil Heatley was driving south along Plenty Road towards Grimshaw Street, and near the intersection he saw Broadbent run across the road in front of his car. He narrowly escaped being hit by Heatley, who also said Broadbent was bare-chested and apparently intoxicated.

20. The applicant was at the time the effective owner of a Mazda MX6 coupe motor car, although it was registered in his mother's name, and which was fitted with a sliding panel sun-roof. Evidence was given by three acquaintances of the applicant that he had a .32 Browning model 10 self-loading pistol, described in Court as a "Belgium Browning", together with bullets for it. The applicant had previously shown his friend Tolga Caliskan the pistol and bullets which he carried in a small bag, and had demonstrated that he knew how to load the firearm. On the night of 13 December, the applicant arrived at Tolga Caliskan's home in East Brunswick in his car, and asked Caliskan to drive him to Greensborough. The applicant did not hold a driver's licence, and he did not want to risk driving that far. The two men left Caliskan's home in the applicant's car with Caliskan driving and the applicant seated in the front passenger seat.

23. At about 11.30 p.m. the applicant's car stopped in a queue of four cars facing north in a dedicated right-hand turn lane at the intersection of Plenty Road and Grimshaw Street, waiting for a green arrow traffic signal allowing them to turn right into Grimshaw Street. The sun-roof was open and the windows were closed. The applicant's car was the second car in line.

26. At this point Broadbent, still bare-chested and carrying his shirt in his right hand, ran across the road towards the first car in the queue. He appeared agitated and aggressive. He attempted to open the passenger side door of the first car but it was locked. He then moved to the applicant's car, and was heard to swear and ask for a lift. The traffic signal then turned green for cars in the turning lane and the first car moved off. The combined evidence of the other witnesses at the intersection was that Broadbent approached the Mazda MX6, grasped the inside edge of the sun-roof opening and hung onto the car which then moved off and turned into Grimshaw Street. Broadbent had his legs drawn up away from the roadway as he hung on while the Mazda accelerated up to a speed which was estimated at between 80 and 100 kms per hour. Some 450 metres east of Plenty Road, Broadbent fell onto the roadway. The applicant's car then sped on its way.

29. The evidence of Tolga Caliskan was that he saw Broadbent punch the left-hand rear side of the car ahead of them which drove off against the red light signal. Caliskan then saw Broadbent approach the applicant's car, and said he appeared to be swearing, angry and violent. He struck the front driver's side window. Caliskan said he thought that the applicant attempted to communicate words or gestures of refusal to Broadbent. At this point the traffic signal turned green, and Broadbent grasped the inside edge of the sun-roof opening and hung on as Caliskan drove the car forward and turned into Grimshaw Street. Caliskan said to the applicant that they should stop, but the applicant said if they did stop Broadbent would bash them and kill them. Caliskan slowed the car down, but then increased his speed to 60 kms per hour while Broadbent hung onto the car and continued shouting. Caliskan said that as he continued along Grimshaw Street he noticed the applicant rising up out of his seat into the sun-roof opening, but could only see the applicant from the shoulder down. He said he had the impression that the applicant was attempting to dislodge the deceased by pushing or hitting him. Caliskan then heard two gunshots, the loudness of the shots being consistent with the firearm being discharged outside the car. He then saw the applicant sitting down with a gun in his hand, recognising it as the one the applicant had previously shown him. Broadbent was no longer hanging onto the car. Caliskan saw the applicant put the gun into a pull-out draw under the front passenger seat. He asked the applicant what he had done and whether he had shot Broadbent. The applicant said, "I fired the gun into the air and he got scared". The applicant and Caliskan then continued on to their destination in Greensborough. The applicant continued to give Caliskan directions, appearing to Caliskan to be very calm. The applicant tried to calm Caliskan down saying, "Nothing happened, there's nothing to be frightened". Before they arrived at their destination in Greensborough, the applicant told Caliskan not to talk about the incident.

32. After falling from the applicant's vehicle, Broadbent lay fatally injured on the roadway. An ambulance and police were called, and Broadbent was taken to hospital, where he died soon after midnight.

35. Police conducted a detailed examination of the area of the incident. There was evidence at the trial that the marks and debris found indicated that the deceased rolled or slid for about 35 metres before coming to rest some 480 metres east of the right-hand turn lane from Plenty Road. The evidence of Sergeant Bellion of the Accident Investigation Section was that the deceased was travelling at between 84 and 100 kms per hour when he hit the roadway surface. A post mortem was conducted by Dr Matthew Lynch, who found a bullet in the deceased's brain, the entry wound being at the top of the head, just above the forehead, and who said that the bullet had passed through the brain before coming to rest at the base of the skull. Dr Lynch said that the injury would cause an immediate loss of consciousness and would virtually always be fatal. Dr Lynch concluded that the firearm had not been touching the skin when it was discharged, and said that the absence of "stippling" or "tattooing" indicated that the firearm had been discharged from a distance (but without being able to estimate what the distance was). He said the deceased had also suffered an extensive fracture of the skull consistent with blunt trauma, and had extensive lacerations and abrasions all over the body. Dr Lynch said that death could have been caused either by the gunshot injury or the skull fracture or a combination of the two injuries. I shall return to the evidence of Dr Lynch's conclusions later. The deceased was found at the time of death to have a blood alcohol concentration of 0.17%, and the breakdown products of tetrahydrocannabinol were present in his body.

38. Two bullet cartridge cases were found in Grimshaw Street during the police search. These, together with the bullet recovered from the deceased's head were examined by Senior Constable Glaser, who identified the bullet as from a .32 automatic colt pistol. His evidence was that tool marks on the bullet were consistent with it having been fired from a Belgium Browning. To discharge the firearm, pressure had to be applied in two separate and opposite directions on the trigger and grip safety respectively. The cartridge cases had been fired from the same pistol and were consistent with being fired from the same pistol as the bullet recovered from the head of the deceased.

41. Evidence was given by Sidik Arslan and Hikmet Karahan that the applicant met them on Tuesday 16 December. The applicant asked Arslan if he had heard the news about a shooting in Bundoora, and then said that "That was me". The applicant produced a referral to a psychiatrist, and asked Karahan to act as his interpreter with a request that he "slightly exaggerate". The applicant and Karahan then drove to the psychiatrist's consulting rooms. Karahan understood that the applicant required a psychiatric report to avoid performing certain obligations. When they arrived at the psychiatrist's rooms, they found the appointment was not until the next day. They then drove back to Brunswick, and the applicant told Karahan about the incident on 13 December 1997. He said the deceased had approached his car and that he had driven off with the deceased who had hung on by grasping the sun-roof opening. The applicant said that he had started the car slowly so as to allow the deceased to let go and drop off, and that he then sped up to about 100 kms per hour, but the deceased still hung on. He said to Karahan in Turkish, "I then capped him", at the same time raising his hand and forming his fingers in the shape of a gun. Karahan understood the applicant as meaning that he had shot the deceased.

44. On 17 December the applicant saw Dr Roger Chow, a psychiatrist. The applicant said that he was hearing voices and sounds in his head, that he was not sleeping or eating very well, that he was banging his head against the wall and also related "persecutory ideas" and "suicidal thinking". Dr Chow diagnosed the applicant as being in a psychotic state and referred him to a treatment centre. He recorded in his notes that the applicant was displaying no symptoms of any psychiatric problems.

47. Tolga Caliskan said in evidence that some time after the incident, the applicant told him the deceased had been shot and to keep his mouth shut. Caliskan's wife Songol said in evidence that she and her husband took the applicant to a psychiatric hospital after the incident and the applicant then told her that he was going to put on an act of being mentally ill. Tolga Caliskan made a police statement on 20 March 1998. Before doing so the applicant had telephoned him and told him that he was likely to be interviewed. The applicant told Caliskan to disclaim any knowledge of the incident. On 21 March 1998 the police fitted Tolga Caliskan with a covert listening device. Caliskan then met the applicant and their conversation was covertly recorded by the police. An English language transcript of their conversation was provided to the court and admitted in evidence by the trial judge. During that conversation the applicant said that the gun was in a safe place and that if they did not talk they would get through this. The applicant was arrested on 22 March 1998 and charged with murder.

50. During the defence case, two psychiatrists were called, Dr Douglas Bell and Dr Lester Walton. Dr Bell diagnosed the applicant as suffering paranoid schizophrenia. Dr Walton also made a diagnosis of paranoid schizophrenia and concluded that the applicant was still deluded. He noted that the applicant said he believed that he was now well but acknowledged that the anti-psychotic medication was assisting him.

53. When the prosecutor opened the case to the jury, he put to them that the issues in the case appeared to be intention, self-defence and perhaps provocation. He explained to the jury that the Crown had to rebut self-defence, emphasising the disproportion between the threat and the applicant's response. He dismissed the suggestion of provocation as utter nonsense. Counsel for the applicant responded that the issue of self-defence was an important issue and that the case was about fear. He said the applicant and Caliskan were very frightened and noted the applicant's statement to Caliskan that "he will kill us".

56. When the judge came to charge the jury, a document was provided for the jury which shows the issues that were before them. His Honour charged the jury as to the elements of murder, defining intention as including the intention to kill or cause really serious injury to the deceased, and putting the alternative that the accused foresaw that death or really serious injury was a probable result of his actions and took the risk that it would result by acting so as to cause the death of the deceased. The defences of self-defence and provocation were put to the jury. His Honour also charged the jury in relation to the alternative verdict of manslaughter resulting from an unlawful and dangerous act. These matters were all discussed at length by the judge with counsel before either counsel addressed the jury, before the charge commenced.

59. The application for leave to appeal against conviction was dated 22 February 2000 and was signed by the applicant's solicitors. Two grounds were mentioned in the application, the first claiming that the jury's verdict was unsafe and unsatisfactory, the second asserting that the judge erred in failing to exclude the covert tape of a conversation between the applicant and Tolga Caliskan. The second ground was abandoned in this Court. On the day before the hearing, however, application was made to amend by adding four new grounds of appeal.

62. This Court is, unfortunately, nowadays very often faced with late attempts to amend grounds of an application for leave to appeal against conviction, so much so that the Registrar has been asked to refer late applications to amend in appeals against conviction to the court dealing with the case unless there are clear reasons in the interests of justice for the amendment to be made.

65. There is a developing tendency in applications for leave to appeal against conviction (I am not to be taken as necessarily referring to the present case) for appellate counsel to trawl through the record of a trial[1] and to extract from a lengthy transcript, like coins from a mouthful of Christmas pudding, some allegedly careless phrase or suggested omission, in the process ignoring carefully considered forensic decisions made by experienced trial counsel, and the course of the trial plotted on the basis of such decisions. The result of this approach to appellate criminal advocacy will almost invariably be the making of a late application for leave to amend the grounds of the application. The consequences are well-demonstrated by what occurred in the present case. The trial had been conducted in September 1999 and the appeal was listed for hearing on Tuesday 16 October 2001. Counsel for the applicant was briefed very late, and the application for leave to amend arrived at lunch time on Monday 15 October so that the Registrar referred the application to amend to this Court. Counsel was obviously not at fault in the timing of the application to amend, but the consequence of the lateness of its making was that it became necessary to adjourn the hearing of the appeal from Tuesday to Wednesday, a course which must have consequences for the cases listed for hearing later in the week. The grounds sought to be included by amendment raised an ingenious point which had clearly not escaped trial counsel, who had, however, obviously made a forensic decision not to raise the issue, I think with good reason. The late attempt to amend grounds, two years after the trial, made it impracticable for this Court to seek a report from the trial judge which, had the grounds been articulated at the appropriate time, might well have been most helpful in the circumstances.

68. Those who seek to raise by amendment shortly before the hearing of the appeal new grounds of appeal, particularly where no objection or exception was taken during the trial, should pay very close attention to what was said in R. v. Clarke & Johnstone[2]; R. v. Gallagher[3]; and R. v. Haseloff[4], and the detailed examination of these issues by Callaway, J.A. in R. v. Wright[5]. The significance of these matters can be seen from the frequency with which his Honour's comments in Wright have already been followed or referred to.[6] As was said in Wright, factors relevant to the exercise of the discretion whether to permit a late ground of appeal to be added by amendment include the prospects of success of the proposed new ground, the lateness of the application and, in the case of a challenged direction in the charge, whether or not exception was taken at trial. Before considering whether in this case to grant the application to amend, therefore, I should turn to a consideration of the proposed grounds.

Ground 3 That the learned judge erred by inaccurately directing the jury as to the evidence on cause of death

Ground 4 That the learned judge erred in failing to direct the jury sufficiently on cause of death and causation

73. These grounds were argued together by Mr. Just for the applicant, counsel emphasising alleged deficiencies in the judge's charge. First it was submitted that the judge had wrongly directed the jury that Dr. Lynch's evidence, on two occasions, had been that the death of the deceased was caused by head injuries, that is, the bullet wound and blunt trauma when, according to the doctor, either of them had been potentially fatal. Counsel submitted that Dr. Lynch's evidence had in truth been that the deceased was killed either by the gunshot injury or by the skull fracture when he fell to the ground or by the two injuries in combination, thus giving three possible causes of death. This, he submitted, had not been drawn specifically to the attention of the jury and, in consequence, questions of causation and criminal intent had not been properly explored. There was a real issue about causation (the argument ran) if, as was possible, the deceased had died by reason of his falling from the vehicle; for then the jury should have considered whether, that being the cause of death, it was linked sufficiently with any conduct of the applicant's. The evidence did not exclude the possibility (Mr Just contended) that the deceased commenced to fall independently of any conduct on the part of the applicant; for example, such a fall might have been induced solely by the speed of the vehicle or by braking. And if the fractured skull could not be ruled out as the cause of death, what then of any intent formed by the applicant when shooting at the deceased? Was such intent sufficient to sustain a conviction for murder? On none of this had the jury been sufficiently directed.

76. Elaborate though this argument is, it depends upon the premise that, according to Dr. Lynch's evidence, the death of the deceased could have been caused either by the gunshot injury or by the skull fracture when the applicant hit the ground or by a combination of the two. Building upon that, Mr Just raised a problem of causation, seeking to separate as a possibility, not properly excluded by the evidence, that the deceased died by reason of the skull fracture and independently of any conduct on the part of the applicant. But there was, in truth, no question of causation at the trial, as the judge explained to the jury. When dealing with the elements of murder, his Honour said -

"The prosecution has to prove that the accused, and not some other person, perpetrated or committed the act or acts which caused the death of the deceased. It must be the accused not some other person. In this case the identity of the perpetrator has not been an issue, it has not been suggested - there has been no issue - it has not been suggested that someone other than the accused did the act or acts which caused the death of the deceased, so we need not deal with that issue further. The prosecution has to prove that an act or acts of the accused caused the death of the deceased, and the emphasis was on the word `caused'. The act or acts do not have to be the sole cause of the main cause of death, they must be a substantial operating cause. No arguments have been put to you as to the element of causation, and you should not have any difficulty inferring that the element of causation has been established."

80. It was accepted by Mr Just that his Honour correctly informed the jury that no arguments had been put by counsel to the jury as to the element of causation. Furthermore, no exception was taken after the charge by the experienced defence counsel to his Honour's explicit statement that there was in effect no issue as to causation. It is hardly surprising on all the evidence that this was so. The evidence of Dr Lynch as to the actual bullet wound was as follows. Asked whether such a wound was likely to be fatal, Dr Lynch replied, "Yes, extremely, virtually always such a wound would be a fatal wound." Dr Lynch was then asked about the skull fracture, which he said was consistent with a fall from a moving vehicle. His evidence-in-chief continued -

"Q. In terms of your examination, doctor, were they the two matters which you'd regard as being life threatening in the general sense? A. The - they were the two examples of the head injuries that I considered to be the cause of death. Q. Are you able to, in the circumstances, choose one from the other? A. Based on my autopsy findings? Not at all. I can distinguish two significant head injuries which of - on their own could have been fatal and then any further opinion I have would be - would be based on circumstances or information that are given. Q. I think you told us earlier that the gunshot wound of itself would almost invariably be fatal, is that so? A. In the vast majority of situations where someone is shot in the head, immediately incapacitated and usually fatally injured, not always but virtually always. Q. Just to make that clear, from the time of an infliction of a gunshot wound of this kind to the head, how quickly would unconsciousness follow? A. Usually virtually always. When a person receives a gunshot wound to the head, that's a significant injury to the head, they will be rendered unconscious but it's not absolute. It's just the usual situation."

Dr Lynch said that the skull fracture was a very serious head injury but, compared with the gunshot injury, was probably a more survivable injury, although very significant. He said the gunshot injury was also very significant but that the chances of survival would probably be less from it. He was then asked -

"Q. Does it follow from that, doctor, that the combination of the two was almost necessarily fatal in the circumstances of this case? A. Well, based on my autopsy findings, I found two significant head injuries, one a bullet wound, and one from blunt trauma, no evidence of natural disease or poisons, so, from that I concluded that the cause of death in Mr Broadbent was head injuries, and those head injuries were a combination of blunt force and gunshot wounds."

This evidence was, in effect, repeated in the first answer given by Dr Lynch in cross-examination.

87. Evidence was also given by a forensic chemist, Mr Peter Ross, of his examination of the bullet wound to the top of the skull of the deceased and that he found gunshot residue particles from the hair and skin in the area. Under cross-examination Mr Ross said that he discovered that there was gunshot residue in the area of the deceased's hair and he was then asked -

"Q. Is this right, that in terms of any surmise about the distance from the wound to the head, that all that one can say is that it's within half a metre? A. Yes, essentially with a pistol, particularly a low calibre pistol, the distance at which I would expect not to see any residue would be approximately half a metre, perhaps a little bit less than that, within that distance I would expect to find residue material."

Furthermore Mr Ross also gave evidence that gunshot residue on the deceased's shirt (which he had been holding in one hand) indicated that the firearm had been discharged in very close proximity to the material.

92. If the pistol was fired at a distance of, say, 19 inches or less from the head of the deceased, it must follow as a matter of virtual inevitability that the deceased was still hanging onto the car, not falling from it, at the time the shot was fired. A car travelling at 84 kms per hour moves 23 metres in a second and, having regard to Sergeant Bellion's evidence, the car is likely to have been travelling at in excess of that speed shortly before the deceased fell from it. That the deceased was still hanging onto the car, not falling from it, when he was shot, may also be supported inferentially by the position and angle of entry of the bullet into the deceased's skull. The fact that the bullet entered the skull at a point just above the forehead (and less than 20 inches from the gun) would seem to suggest that the deceased's head was pressed against the roof of the car when the shot was fired, rather than after he had begun to fall when it might have been expected that his head would be forced backwards by wind resistance.

95. In light of these facts it is not surprising that at the trial defence counsel chose not to raise an issue of causation. The main issue in the trial, as counsel submitted both to the judge and later to the jury, was self-defence, with a substantial subsidiary issue of intent. That counsel was alive to the ingenious argument now made is evident from his reference to an extract from the committal proceeding that was put in his cross-examination of Dr Lynch. His decision not to raise the issue otherwise is likely to have been made on the basis that such a submission might have been regarded by the jury as a mark of desperation, undermining the genuine merits of the issue of self-defence which was being vigorously pursued, and concentrating instead the jury's collective mind on the recklessness of the behaviour of the applicant, a matter which counsel had been pressing the judge not to include in the charge.[7]

98. Furthermore, had the issue of causation been raised by the defence, it is likely that the questioning of Dr Lynch, Mr Ross and the witnesses who observed the deceased fall from the car would in each case have taken a different course.

101. The issues raised at the trial, and the addresses of counsel, largely dictate the directions which must be given by the judge in the charge.[8] As Winneke, P. noted in R. v. Williams[9] "It has frequently been said that a trial judge's directions are not to be regarded as a general treatise upon the law". In RPS v. The Queen[10], Gaudron, A-C.J., Gummow, Kirby and Hayne, JJ. said -

"Judicial Instructions in Criminal Trials Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence." (Underlining added.)

Twice in the footnotes to this paragraph their Honours refer to the well-known passage in Alford v. Magee[11], where Dixon, Williams, Webb, Fullagar and Kitto, JJ. said -

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues of the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case and (2) of telling the jury, in light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule."

107. In support of these two grounds it was submitted, as I have already said, that the judge had not accurately stated the effect of Dr Lynch's evidence, and had missed a subtle but crucial difference, failing sufficiently to make the point that it was possible for the skull fracture (resulting from blunt trauma) to be the sole and independent cause of the death of the deceased. I do not accept this argument. In my view the judge correctly stated Dr Lynch's conclusions as to the cause of death of the deceased, particularly having regard to his last answer in examination-in-chief and the repetition of this evidence at the beginning of his cross-examination.

Ground 5 The judge erred by failing adequately to relate directions on self-defence to the alternative bases upon which murder, if at all, was otherwise to be found

Ground 6 The judge erred by failing adequately to relate directions on provocation to the alternative bases upon which murder, if at all, was otherwise to be found

112. These grounds were also argued together. Mr Just submitted that the directions on both self-defence and provocation erred by relating the relevant defence to no more than "what he did", or other like expressions. As to each defence it was put that proper consideration of the defence was markedly different according to whether the murder otherwise to be made out was murder by gunshot or murder by inducing a fall from the vehicle. It would also differ, so it was said, according to the findings as to the full range of alternative mental elements which had been put for each.

115. Mr Just, however, made no complaint that the judge's directions, whether as to self-defence or provocation, were inaccurate or misstated the law. As to self-defence he accepted that the directions correctly expressed the formula proposed by Wilson, Dawson and Toohey, JJ. in Zecevic v. DPP[12]. His complaint was that what was there said was apt only to a simple case of self-defence, with little in the way of alternatives, whereas here a number of alternatives (it was said at one stage in the argument that six or eight alternatives were put) were being relied on by the Crown.

118. The directions to be given were discussed by the judge with counsel at length before the charge. No relevant exception or complaint was made by defence counsel and it is not now suggested that in either case the directions misstated the law. In my view the jury were perfectly capable of examining all the alternatives put to them, and considering them in the light of the directions they had been given. Indeed, as was pointed out in the course of argument, if the jury approached their task logically, they would first consider whether they were satisfied beyond reasonable doubt that the conduct of the applicant had caused the death of the deceased, and how it was so, before proceeding to consider self-defence or provocation. On that basis, it can scarcely have been an error for the judge to give directions on both self-defence and provocation by relating the relevant defence simply to "what he did" or the like.

121. The application to amend the grounds of appeal was made very late, two years after the trial and some 20 months after the application for leave was lodged, and on the day before the hearing. No relevant exception or objection had been taken in respect of any of the matters raised by the four proposed grounds at the trial. As to the first two proposed grounds, the principal basis for the argument sought to be made involved a matter which had never been in issue at the trial and as to which the evidence might have differed significantly had it been raised. None of the grounds appear to me to have sufficient prospects of success to justify the grant of leave. The Crown in this Court opposed the application for leave to add the proposed four grounds.

124. Late applications to amend may be granted if the justice of the case requires, or if that course is necessary to rectify a miscarriage of justice. In my view it is not necessary on either of these bases to permit the amendment sought. I would refuse leave to make any of the four amendments sought.

Ground 1 The jury verdict was unsafe and unsatisfactory

128. For this ground Mr Just again relied on the arguments under grounds 3 and 4 as to causation. The argument was, in effect, whether the jury was bound to have a reasonable doubt that the deceased, notwithstanding the bullet in his skull, died only as a result of the fracture to his skull, caused by his fall to the road. The argument continued that the fall may have commenced independently and inevitably and the jury could not be satisfied beyond reasonable doubt of any of these options. The other principal bases of this ground, as I followed argument, were that there was insufficient evidence to establish any of the mental elements of murder associated with the gunshot wound and, secondly, that the evidence was not of a quality to negate self-defence.

131. For the purposes of considering this ground I need not restate the evidence or the arguments as to causation which have previously been set out. As to the question of intent, Mr Just submitted that the evidence permits the finding that the applicant voluntarily fired a gun twice with one of the bullets entering the head of the deceased. He submitted however that the evidence did not permit the finding that this act was accompanied by any of the mental elements of murder associated with gunshot wound. The evidence was, so it was said, clear that shortly before the deceased fell to the road he had been hanging from the side of the car which was travelling at between 80 and 100 kms an hour. The deceased was very intoxicated and possibly drugged, and had been behaving in a wild, aggressive and irrational manner. Mr Just submitted that there had been very little time for the applicant to form any state of mind for murder. The best account of what happened inside the car had been given in the evidence of Tolga Caliskan, and according to counsel there had been no utterance on the part of the applicant which could support the mental elements required. As to self-defence, the submission was that the evidence was not of a quality to negate self-defence because all the evidence was to the effect that the deceased was behaving in a violent, aggressive and irrational manner to motorists who were all strangers. It was not reasonably controvertible that the dangerousness of the deceased increased as he persisted in his attachment to the vehicle as it moved off from a stationary position. Caliskan suggested slowing down but the applicant said that if they did stop, the deceased would bash and kill them. There was no means of knowing the extent of what weapons if any the deceased possessed and there must have appeared a real risk of the deceased taking life-threatening action through the sun-roof, regardless of the speed of the vehicle.

134. The appropriate test for determining whether a verdict is unsafe and unsatisfactory was set out in M v. The Queen[13]. Mason, C.J., Deane, Dawson and Toohey, JJ. said that the question is one of fact which the court must decide by making its own independent assessment of the evidence; it must determine whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow a guilty verdict to stand. Their Honours continued -

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations."

That this remains the appropriate test was confirmed in Jones v. The Queen[14] in the judgment of Gaudron, McHugh and Gummow, JJ.

139. When this Court undertakes an independent assessment of the quality of the evidence at trial, to determine whether a conviction is safe and satisfactory, it must surely do so in the context of the way the case was conducted at trial and the issues that were actually then raised. In considering proposed grounds 3 and 4 I have already mentioned Mr Just's concession that no issue as to causation was ever raised by defence counsel. Putting that concession to one side, however, there was in my view an abundance of evidence upon which the jury would have been entitled to conclude that the applicant shot the deceased while he remained on the car holding the rim of the sun-roof, and that he was killed, as the judge put the effect of Dr Lynch's evidence, by the combination of the gunshot wound and skull fracture suffered by the deceased.

142. Turning then to the question of intent, the jury could have been in no doubt that the bullet which entered the deceased's head was fired by the applicant's pistol at a distance of less than 20 inches from the head of the deceased. There was also the evidence of Mr Ross of gunshot residue on the fabric of the deceased's shirt, indicating that the muzzle of the firearm had been in very close proximity to it when fired. The deceased had of course been holding the shirt, waving it, before he leapt onto the applicant's car. As to the argument that the applicant had had very little time to form any state of mind for murder, Caliskan's evidence was that as the car moved away from Plenty Road, he had suggested that they should stop, presumably to dislodge the deceased. The applicant had directed him not to do so. Caliskan then became aware of the applicant rising out of his seat and turning. After the gunshots, Caliskan saw the applicant sitting down with the gun in his hand, and saw him then put the gun into a pull-out drawer under the front passenger seat. It follows that the jury would have been entitled to conclude that before rising in his chair and turning to shoot the deceased, the applicant must have drawn open the pull-out drawer under the front passenger seat and removed from it the gun. After the shooting he remained, according to Caliskan, calm, saying only that he had fired his gun in the air. As to intent, the jury also had before them the evidence of Karahan, if they accepted it, together with the contents of the covert tape made by Caliskan with equipment provided by the police. The recorded conversation contains a number of clear admissions by the applicant that he had been responsible for the shooting, and there is no suggestion at these points that the fact that he fired the pistol or that the bullet struck the deceased was accidental, or anything other than the result of an intentional shooting. In my view on all the evidence the jury were perfectly entitled to be satisfied that the applicant shot the deceased intending to kill him, or at least to do him really serious injury. But even if, as Callaway, J.A. has suggested, the applicant fired and shot intending only to scare the deceased, the jury would equally have been entitled on the evidence to conclude that he did so, knowing that a probable or likely result of his doing so was that the deceased would fall from the car and suffer death or really serious injury. Even if the alternative of recklessness be a relevant consideration (and this was by no means put plainly by Mr Just), I agree with Callaway, J.A. that the jury was still entitled to convict the applicant of murder.

145. The issue of self-defence raised the question whether the applicant believed upon reasonable grounds that it was necessary in self-defence for him to have acted in the manner described above. If the jury were left in any reasonable doubt about the matter, the applicant was entitled to an acquittal. They would have been entitled

to consider that all the applicant and Caliskan had to do to defend themselves from the deceased was to slow the car and close the sun-roof. There were two of them, and the applicant was armed, had the deceased then attempted to attack them. This was, I think, pre-eminently a matter for the jury, and, again, I think that on all the evidence they were quite entitled to be satisfied that the applicant did not have reasonable grounds for shooting the deceased, or, as Callaway, J.A. says, engaging in conduct that risked really serious injury, notwithstanding his wildly irrational behaviour, and accordingly to be satisfied that self-defence had been negated.

149. There is, I think, no substance in the argument that the conviction for murder is unsafe or unsatisfactory. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty as charged.

152. I would dismiss the application for leave to appeal against conviction.

157. The Crown's primary contention was that the applicant intended to kill the deceased, or to cause him really serious injury, whether by the bullet or by his falling to the road from a car travelling at speed. Its alternative contention was that the applicant knew that the probable[15]

result of his firing at or towards the deceased was to kill him, or to cause him really serious injury, by falling from the car. So it was that the learned trial judge included the following passage in his charge:

"To get to the point where the alternative position needs to be considered you must have concluded that you are not satisfied beyond reasonable doubt that the accused had the intention to kill or really seriously injure the deceased. If you had come to a positive conclusion on that matter you need not consider the alternative. But perhaps you concluded that the accused fired the shots not to kill or really seriously injure but to scare or frighten the deceased. If so, you could turn to consider a different aspect of the deceased's state of mind. Did he, when he fired the shots, know that the probable result of his doing so was to cause the deceased to fall from the car and in so doing suffer death or really serious injury."

163. 46 Causation is to be determined at the time of death, half an hour after the incident, when the deceased had a bullet in his brain and a fractured skull. The bullet came from a shot fired by the applicant. The fractured skull resulted from falling on the roadway. Trial counsel was wise not to contend before the jury that the bullet was not at least a cause of death. That being so, if the applicant fired the shot intending the bullet to kill the deceased or cause him really serious injury, it would obviously not matter whether the deceased had already begun to fall from the vehicle. If the applicant fired the shot intending only to scare the deceased, but knowing that a probable or likely [16] result of his doing so was that the deceased would fall from the car and thereby suffer death or really serious injury, it would still not matter whether the deceased had already begun to fall from the vehicle. Half an hour later the act of firing the shot still caused or contributed to the death of the deceased, even if it did so not by having caused him to fall on the roadway but by reason of the bullet lodged in his brain. It would be analogous with a person shooting at a victim intending to kill him with a bullet but instead precipitating a fatal heart attack or plunging a knife into the victim's body intending to kill him by stabbing where death results instead from a poison on the knife that was unknown to the assailant. All that is required is that an act of the accused that was done with the requisite intent or recklessness was a cause of death, even if not in the manner intended or foreseen.[17]

166. On that analysis, it matters not that the only form of recklessness referred to by the prosecutor in his final address and by the learned judge in his charge was recklessness with respect to death or really serious injury as a result of falling on the roadway. It was sufficient that an act of the applicant that was done with that form of recklessness was a cause of death, even if it was so not in the manner foreseen but by reason of the bullet lodged in the deceased's brain. In other words, it does not matter that the Crown's alternative contention did not extend to the applicant's knowing that a probable or likely result of his firing at or towards the deceased was to kill him by a bullet. That omission went to means rea, not causation.

169. It would not have been difficult for the jury to apply the test for self-defence or the tests for provocation according to the view that they took of the facts. That is so even if they were not satisfied that the applicant intended to kill or cause really serious injury and had to consider self-defence, or self-defence and then provocation, in the context of recklessness. There is little authority in relation to provocation and recklessness[18], but it is not unduly difficult. Adapting the words in R. v. Thorpe (No. 2)[19], the tests are whether -

(a) provocative words or conduct caused the accused to lose self-control and act as he did in the heat of passion even though he knew that death or really serious injury was a probable or likely result; and

(b) a person with ordinary powers of self-control (of the same age as the accused where age is relevant) might, in the same circumstances, have lost self-control to the point of acting as the accused did even though he knew that death or really serious injury was a probable or likely result.

The tests are more difficult to express with linguistic precision than they are to apply.[20] Counsel was wise not to ask the judge to confuse the jury with combinations.

175. Trial counsel was also right, in my opinion, in perceiving that self-defence was his best argument. It is important to remember that the applicant and Caliskan were not required to judge to a nicety the appropriate response to the alarming situation in which they found themselves; but I have concluded that, whichever version of the Crown case succeeded, it was open to the jury to be satisfied to the requisite standard that the applicant did not believe upon reasonable grounds that it was necessary in self-defence to do what he did.[21] For it is also important to remember that there were two of them, that the deceased was unarmed and there was no reason for them to think otherwise and that, although Caliskan began to slow down, after speaking to the applicant he speeded up to between 84 and 100 kilometres per hour. In that context the jury were entitled to be satisfied that there was no need for the applicant to engage in the conduct in which he did, even if he only foresaw really serious injury. A fortiori it was open to the jury to exclude self-defence if they were properly satisfied of intention to kill or do really serious injury or recklessness with respect to death.[22] The position was not comparable with that of a householder confronted by a burglar. Self-defence being the best argument, it follows that the verdict was not unsafe on other grounds.

178. For these reasons I, too, would refuse the late application to amend the grounds of appeal[23] and dismiss the application for leave to appeal against conviction.

[1] Cf. R. v. Fordham (New South Wales Court of Criminal Appeal, unreported, 2 December 1997) per Hunt, C.J. at C.L. at 2.

[2] [1986] VicRp 64; [1986] V.R. 643 at 661-662.

[3] [1998] 2 V.R. 671 at 681-682.

[4] [1998] 4 V.R. 359 at 375-6.

[5] [1999] VSCA 145; [1999] 3 V.R. 355, esp. at 360-361.

[6] R. v. Williamson [2000] VSCA 5; [2000] 1 V.R. 58 at para.[77]; R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at para.[3]; R. v. Curzon [2000] VSCA 128; (2000) 1 V.R. 416 at para.[39]; R. v. Pepe [2000] VSCA 208; (2000) 2 V.R. 412 at para.[41]; R. v. Williams [2000] VSCA 232 at para.[12]; R. v. Skelly & Wenitong [2001] VSCA 16 at para.[9]; R. v. Frazer [2001] VSCA 101 at para.[26]; R. v. Le Doan [2001] VSCA 142 at para.[22]; R. v. P.F.D. [2001] VSCA 198 at para.[23].

[7] Cf. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at 594 per Callaway, J.A.

[8] Cf. Doggett v. R. [2001] HCA 46 per Gleeson, C.J. at [1] to [3], dissenting, but not, I think, in these paragraphs.

[9] [2000] VSCA 232 at para.[14].

[10] [2000] HCA 3; (2000) 199 C.L.R. 620, at 637.

[11] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[12] [1987] HCA 26; (1981) 162 C.L.R. 645 at 661-662.

[13] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-494.

[15] This reflects the language used at the trial. Compare fn. [ below and the accompanying text.

16] See Boughey v. R. [1986] HCA 29; (1986) 161 C.L.R. 10 at 20; R. v. Faure [1999] VSCA 166; [1999] 2 V.R. 537 at [29]- [38].

[17] There was no need for the judge to explain these matters to the jury, because causation was not in issue.

[18] Compare Masciantonio v. R. [1995] HCA 67; (1995) 183 C.L.R. 58 at 66. Mr Just disclaimed any suggestion that different considerations applied to the proposed ground 6 from those which applied to the proposed ground 5.

[19] [1999] VSCA 172; [1999] 2 V.R. 719 at 725.

[20] That sounds paradoxical but it is not. There are many concepts that are easier to understand than to put into words.

[21] Zecevic v. Director of Public Prosecutions [1987] HCA 26; (1987) 162 C.L.R. 645 at 661.

[22] I do not share the confidence of the other members of the Court that it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended more than to scare the deceased. That is why I have concentrated on self-defence as applied to recklessness.

[23] Compare the cases cited by Charles, J.A. at [22].